This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
11. Co. Litt. 172a; Sheppard's Touchstone, 229; 1 Hayes, Conveyancing (5th Ed.) 25; 2 Sanders, Uses & Trusts (5th Ed.) 41.
12. Litt .Sec.Sec. 551, 567, 568; Co. Litt. 309a, Butler's note.
13. See ante, Sec.Sec. 53 (a).
14. 2 Blackst. Comm. 318.
15. Sheppard's Touchstone, 267;
2 Piatt, Leases, 1.
16. 29 Car. II. c. 3, Sec.Sec. 1, 2.
17. Co. Litt. 85a; Tottel v. Howell, Noy, 54; 14 Vin. Abr. tit, "Grant" (Ga.); Sheppard's Touchstone, 267"; Somerset v. Fogwell, 5 Barn. & C. 875; Bird v. Hig-ginson, 2 Adol. & E. 696.
17a. Ante, Sec. 42.
A release mav also be made, not by way of enlargement of an estate, but by way of passing an estate (mitter l'estate), as when one joint tenant or coparcener releases his estate to his cotenant. In this case, words of inheritance have never been required, since the person to whom the release is made is regarded as already seised of the freehold, and the release is merely a
18. 2 Pollock & Maitland, Hist. Eng. Law, 90.
19. Co. Litt. 273b.
20. 2 Sanders, Uses & Trusts (5th Ed.) 73.
21. Litt Sec.Sec. 460, 465.
22. Co. Litt. 270b.
23. Litt. Sec. 465; Challis, Real Prop. 409.
24. Litt. Sec. 459; Co. Litt. 270a.
25. See ante, Sec. 100.
26. Litt. Sec. 465; Co. Litt. 273b.
1570 Real Property. [$ 427 discharge from the claim of another seised under the same title.27 A release was never regarded as sufficient to pass the interest of one tenant in common to another, since they are regarded as having distinct freeholds.28
A third mode of operation of a release is by way of "extinguishment" of an interest in another's land, as when the owner of a rent, a right of profit, or an easement, releases his rights to the owner of the land subject thereto.29 The only other modes of opera tion of release at common law occurred in the case of a release, by one disseised, of all his right or claim in favor of the disseisor, or of his heir or feoffee, this being known as a "release by way of passing the right" (mitter le droit).30
A release must, at common law, be by deed, that is, by writing under seal.31
Strictly speaking, at the present day, as at common law, a release cannot be made to one having neither possession of the land nor a vested estate therein,32 but a conveyance purporting to be a release will almost invariably be upheld as a conveyance by bargain and sale or grant.33
27. Co. Litt. 273b, and Butler's note.
28. 4 Cruise, Dig. tit. 32, c 6, Sec. 25; 2 Preston, Abstracts, 77.
29. Litt. Sec. 480; Co. Litt. 280a.
30. Litt. Sec. 466; 4 Cruise, Dig. tit. 32, c. 6, Sec. 26.
31. Co. Litt. 264b; 2 Pollock & Maitland, Hist. Eng. Law, 91.
32. Runyon v. Smith, (C. C.) 18 Fed. 579; Branham v. City of San Jose, 24 Cal. 585; Warren v. Childs, 11 Mass. 222. Compare Sessions v. Reynolds, 7 Smedes &
Moil law, an assignment of such an interest in land, as distinguished from an interest in an incorporeal thing, might be made without writing,35 but by the Statute of Frauds36 a writing signed by the assignor, or by his agent authorized in writing, is required. The question of the right of a tenant to make an assignment of his leasehold interest, and that of when a transfer by him constitutes an assignment and when a sublease, have been previously considered.37
M. (Miss.) 130.
33. Baker v. Whiting, 3 Sumn. 475, Fed. Cas. No. 787; Conn's Heirs v. Manifee, 2 A. K. Marsh (Ky.) 396, 12 Am. Dec. 417; Pray v. Pierce, 7 Mass. 381, 5 Am. Dec. 59; Havens v. Sea Shore Land Co., 47 N. J. Eq. 365, 20 Atl. 497: Lynch v. Livingston, 6 N. Y. 422; Hall's Lessee v. Ashby, 9 Ohio 96, 34 Am. Dec. 424. See Ely v. Stannard, 44 Conn. 528.
34. 2 Blackst. Comm. 326; 4 Cruise, Dig. tit. 32, c. 6 Sec. 15.
That class of conveyance known as surrender, involving the transfer of a particular estate to the reversioner or remainderman, though recognized at common law, is frequently the subject of adjudication at the present day, and will be most conveniently discussed in a subsequent section apart from the other common law conveyances.38
- Exchange. An exchange is a mutual conveyance of equal-interests in distinct pieces of land. At common law, if both pieces of land lay in the same county, the exchange might be oral, while, if situated in different counties, a deed was required.39 But, by the Statute of Frauds, a writing is necessary on the exchange of freeholds or of terms for years other than certain terms for three years or less.40 No livery of seisin was necessary at common law, but each party to the exchange was required to enter while both were alive.41
A common-law exchange could not be effected unless the estates of the respective parties were of the same legal quantum, - that is, an estate in fee simple could be
35. 4 Cruise, Dig. tit. 32, c. 6, Sec. 20.
36. 29 Car. 2, c. 3, S 3. As to the various state statutes bearing on the form of an assignment, see 1 Tiffany, Landlord & Ten. Sec. 154.
37. Ante, Sec.Sec. 54, 55.
38. Post, Sec. 431.
39. Litt. Sec.Sec. 62, 63; Co. Litt. 50a.
40. 29 Car. II. c. 3, Sec.Sec. 1-3; Co. Litt. 50a, Butler's note. See Dowling v. Mckenney. 124 Mass. 478; Cass v. Thompson, 1 N. H. 65, 8 Am. Dec. 36; Rice v. Feet, 15 Johns. (N. V.) 503.
41. Co. Litt. 50b.
Exchanged only for an estate of the same character, an estate for twenty years only for an estate for twenty years, and so on.42 The word "exchange" was required to be used, and no other expression would supply its place.43 A common-law exchange, answering to the foregoing requirements, probably never occurs in modern practice.